Draft Policy Aims to Ease Job Changes for Foreign Workers

By Roy Maurer Dec 8, 2015
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To help foreign workers approved for permanent residency in the United States more easily change jobs and advance their careers, U.S. Citizenship and Immigration Services (USCIS) has issued a draft policy memo aimed at clarifying which occupations would be classified as “same or similar”—a key component of the job portability process.

The policy, intended to go into effect March 21, 2016, is designed to reduce uncertainty which, according to USCIS, “may deter many foreign workers from changing employers, seeking new job opportunities or even accepting promotions for fear that such action might invalidate their currently approved immigrant visa petitions.”

Annual per-country visa caps along with overall caps on employment-based visas limit foreign workers’ access to green cards. Workers and their advocates have voiced concerns over the years that if they change jobs while awaiting a green card, their visa petition may no longer be valid and they’ll lose their place in the green card line.

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) was intended to address this problem by allowing foreign workers already approved for permanent residency to change jobs while waiting for their green cards as long as:

  • They filed an I-485 application to adjust to lawful permanent resident status.
  • No decisions have been made regarding the petition in the past 180 days.
  • The job to which an individual worker wants to switch to is in the same or similar occupational classification as the job for which the original visa petition was filed.

Congress determined that a delay of 180 days without judgment on a petition is considered intolerable, but the delays can actually be far worse, said Cyrus Mehta, the founder and managing attorney of Cyrus D. Mehta & Associates, a New York City-based law firm focused on U.S. immigration law. “For instance, one can file an I-485 application when the priority date becomes current, and then it may retrogress, resulting in the I-485 application remaining pending for years.”

And according to USCIS and other experts, the job portability option is underutilized. “The biggest concern is a lack of certainty,” said Justin Storch, manager of agency liaison at the Council for Global Immigration, a Washington, D.C.-area association which advocates for advancing high-skilled immigration. “The scattered ‘same or similar’ guidance prior to this memo was never very thorough, and whether or not a job was portable was largely a guessing game.”

Determining ‘Same or Similar’

When deciding whether two jobs are in the same occupational classification, USCIS looks to whether the jobs are “identical,” “resembling in every relevant respect,” or “the same kind of category or thing,” according to the agency. With respect to whether two jobs are in similar occupational classifications, USCIS looks to whether the jobs share essential qualities or have a “marked resemblance or likeness.”

Specifically, the draft memo instructs USCIS adjudicators on how to use the U.S. Department of Labor’s (DOL’s) Standard Occupational Classification (SOC) codes and other evidence to determine if a new job is the same or similar to a worker’s current job.

The SOC system organizes occupational data and classifies workers into 840 detailed occupations based on the type of work performed and, in some cases, on the skills, education and training required to perform the job. The system is organized using numeric codes that generally consist of six digits. Each digit or group of digits represents the level of similarity of positions. For example, the SOC code for the detailed occupational classification of “web developer” is 15-1134 and is broken down as follows:

  • The first two digits (15) indicate the job belongs within a group classification which includes all computer and mathematical occupations.
  • The third digit (1) indicates the subgroup classification, which includes all computer occupations.
  • The fourth and fifth digits (13) indicate the broad occupation classification, which includes software developers and programmers.
  • Finally, the sixth digit (4) indicates the detailed occupation classification, which in this case is for web developers.

The burden is on the applicant to demonstrate that the new job position is in the same or similar occupational classification, USCIS said. If the applicant shows that the codes for the original and new position are the same—that all six digits of the codes match—adjudicators may treat that evidence favorably. If the codes are different but part of the same broad occupation code, that also may be treated as favorable evidence.

For example, the occupations of computer programmers (15-1131), software developers—applications (15-1132) and web developers (15-1134) are found within the broad occupational group of software developers and programmers. These occupations may be considered to be in similar occupational classifications given the largely similar duties and areas of study associated with each classification, USCIS said.

In certain instances, however, simply establishing that two jobs are described within the same broad occupation may not be sufficient to establish by a preponderance of the evidence that the two jobs are in similar classifications. For example, the occupations of geographers (19-3092) and political scientists (19-3094) are found within the broad occupational code for miscellaneous social scientists and related workers. “Although such occupations are grouped together in the same broad occupational code, the workers in those respective occupations largely do not share the same duties, experience and educational backgrounds,” the agency said.

Too Rigid?

Some immigration experts are worried that the draft policy places too much emphasis on the SOC codes. “While the proposed memo also guides USCIS adjudicators to view other evidence, and properly reminds them to use the preponderance of evidence standard, there is a risk that an adjudicator may rely exclusively on the SOC codes,” Mehta said. “Too much reliance on the SOC codes is problematic as it can lead to excessive rigidity, thus undermining an adjudicator’s ability to provide flexibility to the applicant, which is what [this policy] intended.”

Mehta said the guidance could be improved if USCIS gave more weight to an evaluation of the duties, requirements and necessary skills between the two jobs, rather than on the SOC codes.

Adjudicators are also advised to consider career progression and differences in wages as part of the totality of the circumstances when determining whether a new position is a valid job portability option. “By recognizing career progression and transitions to related jobs within a foreign worker’s field of endeavor, this [policy] offers foreign workers and their employers increased flexibility and stability as they pursue lawful permanent residence,” USCIS said.

Sign of Things to Come

Storch and others believe that this policy change is the first part of an upcoming proposed rule providing job flexibility to foreign workers approved for green cards.

“An upcoming regulation will address various aspects of the AC21 law, and it appears that one thing it might do is create a formal adjudication process for job changes with green cards,” Storch said. “To date, it has been a more informal process that did not require much paperwork.” The new regulation combined with this new guidance could create more bureaucracy, he said. “In the end, employers will need to weigh the benefits of the regulation with new obligations to comply with it.”

The upcoming proposed rule is currently slated for publication sometime in December, according to USCIS.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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